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Goplin v. Weconnect, Inc.

United States District Court, W.D. Wisconsin

December 28, 2017

BROOKS GOPLIN, Plaintiff,
v.
WECONNECT, INC., Defendant.

          OPINION & ORDER

          JAMES D. PETERSON, DISTRICT JUDGE.

         Plaintiff Brooks Goplin was a satellite/cable technician for defendant WeConnect, Inc. In this proposed class action, Goplin contends that WeConnect failed to pay him for some of the time he spent working and altered his time records to deprive him of regular and overtime wages, in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19, and Wisconsin wage and hour laws. Dkt. 1. WeConnect moves to dismiss the case in favor of arbitration pursuant to an arbitration agreement or to stay the case pending the U.S. Supreme Court's decision in Epic Systems Corp. v. Lewis, Dkt. 7. Because WeConnect has not shown that it can enforce the agreement and because the concerted action waiver in the agreement is unenforceable, rendering this action exempt from arbitration under the terms of the agreement, the court will deny WeConnect's motion to dismiss or stay the case.

         BACKGROUND

         When deciding a motion to dismiss under Rule 12(b)(3), the court may consider the allegations of complaint and information submitted by affidavits. See Continental Cas. Co. v. Am. Nat'l Ins. Co., 417 F.3d 727, 733 (7th Cir. 2005). The court will accept as true the allegations in the complaint unless they are contradicted by affidavits. See Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 806 (7th Cir. 2011). The court resolves all factual disputes and draws all reasonable inferences in the plaintiff's favor. Id. Here, the relevant facts are undisputed.

         WeConnect is a business that “connect[s] next-generation technology.”[1] It formed in September 2016 “when two privately held companies, Alternative Entertainment Inc. (AEI) and WeConnect Enterprise Solutions, combined.”[2]

         In February 2017, WeConnect hired Goplin as a satellite/cable technician. A week later, Goplin signed a document titled “AEI Alternative Entertainment, Inc. Open Door Policy and Arbitration Program.” Dkt. 9-1. The document contained the following arbitration provision:

[B]y agreeing to this policy, you agree that in consideration for your employment and in exchange for promises made by AEI, Inc. (“AEI” or the “Company”), both you and AEI understand and agree that either one may elect to resolve the following types of disputes exclusively through binding arbitration:
. . . . Disputes between you and AEI (or any of its affiliates, officers, directors, managers or employees) relating to your employment with the Company (including but not limited to: (1) claims of discrimination under federal, state or local laws, (2) claims regarding compensation, including overtime; (3) claims regarding promotion, demotion, disciplinary action, and/or termination; and (4) claims regarding the application or interpretation of any of the terms of this agreement).

Id. at 1. It also contained what is sometimes called a concerted action waiver:

By signing this policy, you and AEI also agree that a claim may not be arbitrated as a class action, also called ‘representative' or ‘collective' actions, and that a claims may not otherwise be consolidated or joined with the claims of others.

         Id. The document provided that the concerted action waiver was central to the arbitration agreement:

This agreement represents the intent of both you and the Company to arbitrate disputes that may arise in accordance with this Agreement. If any clause, provision or section of this Agreement is ruled invalid or unenforceable by any court of competent jurisdiction, the invalidity or unenforceability of such clause, provision or section shall not affect any remaining clause, provision or section hereof. However, to the extent this class/collective action wavier is found to be unlawful and/or unenforceable, from that point forward the collective claim will not be covered by this agreement and may be pursued in a court of law unless and until the claim ceases to be party of a class-action, representative-action or consolidated case.

         Id.

         Goplin signed the agreement on February 2, 2017. The signature ...


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